Global Legal Monitor

Italy: Right to Use Maternal Last Name

(Jan. 25, 2017) On December 28, 2016, a decision by the Constitutional Court of Italy declared unconstitutional several provisions of the Civil Code and other legislation, concerning the attribution of the maternal last name to children. (Decision No. 286 of November 8, 2016, Related to Provisions of the Civil Code and Other Legislation (Decision No. 286), GAZETTA UFFICIALE (G.U.) No. 52 (Dec. 28, 2016), Corte Costituzionale website (in Italian).) The underlying case dealt with a minor born in Brazil who held dual Italian-Brazilian citizenship and who requested to be registered in Italy with the last names of both of his parents, as he had been registered in Brazil. (Id. ¶ 3.1.) The respective civil authorities rejected the minor’s request based on existing legislation, and the case was eventually brought before the Italian Constitutional Court. (Id. ¶ 2.)

The Civil Code provisions in question refer to the permissible evidentiary means for the establishment of a person’s civil status (art. 237), the attribution of a last name to a child born outside of marriage (art. 262), and the attribution of a last name to an adoptive child (art. 299). Prior to the Constitutional Court’s decision, these provisions only allowed the paternal last name to be attributed to the child when both parents recognized the child at the moment of birth or adoption.

Additionally, article 72, paragraph one, of Royal Decree No. 1238 of 1939, as amended, on the digital and archival registration of the civil status of a person, and articles 33 and 34 of Presidential Decree No. 396, on the change of last name of a person as a result of the change in his or her parents’ last name, which would have contradicted the Court decision, were also voided. (Decision No. 286, Holding No. 1.)

The Court’s Reasoning

The Constitutional Court reasoned that all of the voided provisions forcing the parents to attribute the paternal last name alone to the biological or adoptive child at the moment of birth or adoption, even if the parents were in agreement to do otherwise, were contrary to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), other decisions of the Council of Europe and the European Court of Human Rights, and the Italian Constitution. (Id. ¶¶ 1 & 2; CEDAW (Dec. 18, 1979), Office of the United Nations High Commissioner for Human Rights website; Constitution of the Italian Republic (Apr. 2009), arts. 2, 3 ¶ 1, 29 ¶ 2, 117, Italian Senate website.)

The Court held that the voided legal provisions that did not contemplate the posssibilty of the parents’ agreeing to attribute the maternal, as well as the paternal, last name to the child violated the child’s constitutional right to his or her own personal identity and the constitutional right to equal dignity between parents and spouses. (Decision No. 286, ¶¶ 3.2(2) & 3.3(1).)

As a result of the Constitutional Court’s decision, parents may agree to add the maternal last name after the paternal last name to their child’s name, at the moment of birth or adoption. (Id. ¶ 6.) In the absence of an agreement between the parents, the existing provisions related to the attribution of the paternal last name remain applicable, in expectation of “a legislative intervention destined to regulate the matter comprehensively, in accordance with criteria eventually compatible with the principle of parity.” (Id.)